ELR Citation: ELR 20526
No(s). s. 89-1306 et al (D.C. Cir. Jan 25, 1991)

The court holds that, in granting a full-power license to a nuclear power plant, the Nuclear Regulatory Commission (NRC) did not abuse its discretion in interpreting its emergency planning regulations or in allowing the plant's full-power license to become immediately effective, but that, in granting the plant's low-power license, the NRC failed to adequately explain its reasons for rejecting a licensing challenge based on the results of an on-site exercise. In a series of decisions on licensing the Seabrook Nuclear Power Station in New Hampshire for low- and full-power operations, the NRC's Atomic Safety and Licensing Board rejected testimony on radiation dosages from possible plant accidents, ruled that an exercise testing the plant's emergency plans revealed no fundamental flaws, and denied a motion to compel discovery of the plant's ability to handle microbiological corrosion. The NRC's Atomic Safety and Licensing Appeal Board generally affirmed the Licensing Board's rulings, but remanded four issues relating to the plant's emergency plans. The Licensing Board authorized a full-power license for the plant and analyzed the remanded issues in a supplemental decision. In a series of appeals, the NRC upheld the Licensing Board's ruling that the radiation dosage testimony was inadmissible and allowed immediate effectiveness of the full-power license. The Licensing Board subsequently denied a motion to admit a low-power licensing challenge based on the results of the on-site exercise. The Appeal Board affirmed this ruling, and the NRC granted a low-power testing license to the plant.

The court first holds that it has jurisdiction to review issues raised by the NRC's granting a low-power license to the plant. Section 189 of the Atomic Energy Act (AEA) permits judicial review of final orders in licensing proceedings. The NRC has issued a final order granting the low-power testing license. The court next holds that the NRC's ruling on the immediate effectiveness of the full-power license is also reviewable. The immediate effectiveness ruling represents a final order. Reviewing it will not disrupt the orderly process of adjudication within the agency, and significant legal consequences flow from it. The court holds that the NRC's denial of a waiver of its financial qualification exemption is not a reviewable final order. The court further holds that the NRC's ruling that excludes expert testimony on emergency planning is reviewable, because there is a close link between this ruling and the NRC's ruling on immediate effectiveness.

Turning to the NRC's ruling that the Seabrook emergency plans need not address specific accident sequences and their potential dose consequences, the court holds that the NRC's interpretation of its emergency planning regulation, 10 C.F.R. §50.47, is entitled to deference. Deference is presumptively owed an agency's interpretation of its own regulations. Furthermore, Congress delegated to the NRC an unusually broad authority under the AEA. The court next holds that the NRC's interpretation of §50.47 is not plainly inconsistent with the language of the regulation. The regulation makes no reference to specific conditions or accident sequences, and the standards set forth in the regulation do not require the Commission to measure a plan against particular hypothetical scenarios. Other provisions in the regulation indicate that the core of the Commission's inquiry is compliance with the generic standards of §50.47(b). The court further holds that the structure of the statute authorizing appropriations to the NRC for 1980 reflects Congress' assumption that the NRC could develop generic standards that would reasonably assure public safety without the NRC having to examine the specific safety consequences of each emergency plan for each plant. The court holds that the NRC's generalized approach to dose mitigation in off-site planning is a reasonable exercise of its discretion under AEA §182(a). The statute's requirement of "adequate protection" permits the acceptance of some level of risk. The court next holds that the Licensing and Appeal Boards exhibited a reasoned evaluation of the adequacy and implementability of the Seabrook emergency plans' compliance with the standards of §50.47(b), which is the approach required by the Commission under §50.47. The court next holds that the NRC's exclusion of testimony on potential radiation doses that would result from specific hypothetical accidents at the Seabrook plant was not improper. The Licensing Board's task under §50.47 is limited to a review of the plans' conformity with paragraph (b) standards. The proffered evidence would not make the finding of an adequate and implementable plan within the meaning of the regulation more or less likely. In addition, petitioners could have submitted their evidence on radiation doses with an application for a waiver of the normal application of §50.47 on the ground of special circumstances, but they did not do so.

The court next holds that the Commission did not act arbitrarily or capriciously in allowing the full power authorization to become immediately effective. The NRC concluded that the Licensing Board had not violated a clear, non-discretionary duty when it failed to withhold authorization for the plant's full-power license. No NRC rules preclude the authorization of a license while remand proceedings are pending, and there is precedent for such authorizations. Furthermore, the Appeal Board did not state that the issues it remanded to the Licensing Board precluded full-power license authorization. Consistent with the AEA, the Licensing Board could choose to address the remanded issues in post-licensing hearings upon finding that the issues were not significant for emergency planning at Seabrook.

Turning to the low-power licensing issues, the court holds that the decision of the Appeal Board affirming the Licensing Board's denial of a motion to compel discovery of Seabrook's ability to detect and control microbiologically induced corrosion in its cooling system was not arbitrary or capricious. Petitioners raised a licensing challenge based on the possible blockage of cooling systems by marine life and debris. The Appeal Board took into account the entire context of the contention. Its heading and stated basis focus solely on the blockage of cooling systems due to the accumulation of marine life and debris. Therefore, it was sensible for the Board to approach the matter as a straightforward question of linguistic construction and not as a matter of technical interpretation requiring a battle of experts.

Finally, the court holds that the Appeal Board did not properly consider petitioners' rights to a hearing under AEA §189 when it rejected a late-filed contention that an on-site exercise revealed fundamental deficiencies in an on-site emergency plan. The court holds that AEA §189 required the Appeal Board to provide an affirmative explanation as to whether petitioners' allegations raised any material issue and, if they did, how that materiality was to be weighed against petitioners' delay in promptly filing the contention. Although the Appeal Board ruled that no hearing was required on petitioners' contention because it did not involve a fundamental flaw in the on-site plan, the court finds that it cannot determine from the Appeal Board's explanation whether it acted properly in applying the fundamental flaw concept. The court remands this ruling for reasoned decisionmaking without vacating the authorization of Seabrook's operating licenses.

Counsel for Petitioners
John A. Traficonte, Ass't Attorney General; James M. Shannon, Attorney General; Stephen A. Jonas, Deputy Attorney General
One Ashburton Place, Boston MA 02108
(617) 727-2200

Counsel for Respondents
William C. Parler, E. Leo Slaggie, John Cho, Roger Davis, E. Neil Jensen, Marjorie S. Nordlinger
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Richard B. Stewart, Ass't Attorney General; Peter R. Steenland, Jeffrey Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BUCKLEY, WILLIAMS, and RANDOLPH, Circuit Judges.